Material One Might Expect In Family Law Litigation

For the most part court cases are decided on the evidence that is before the court. The litigants are responsible for putting the evidence before the court. In family law litigation there is often an extra litigant, the Independent Children’s Lawyer (“ICL”) who assists the Court and whose job is to promote the best interests of the children. In this post and the next post I propose to look at some of the types of evidence that might find themselves before the court in family law litigation.

Independent Children’s Lawyer
I have been involved in cases where the following have been subpoenaed by the ICL:
•    Criminal history of the litigants
•    Medical Records of the litigants
•    Medical Records of the children
•    School records of the children

It would be wise to expect similar material to be a part of any litigation in which you are involved.

Challenging Evidence
If there is evidence in the case which you wish to challenge, your challenge needs to be done properly. Failure to properly challenge evidence may result in the subject evidence being treated as accepted or admitted and that may have adverse consequences for your case.

Behaviour
Litigants usually try to cast themselves in the best possible light. It is also common to see the litigant try to find fault with the case of their opponent and therefor contend that the opponent is not entitled to receive the outcome they are seeking or as much of the outcome as they are seeking. One of the ways this is sought to be done is by scrutinising the behaviour of their opponent.

If you talk to litigation lawyers they will tell you they have seen cases where:

• People use their lunch break at work to meet their girlfriend / boyfriend at a hotel for a sexual liaison.
• Spouses use the GPS of a smart telephone to time their rendezvous with a lover within minutes of the arrival of the spouse from an errand.
• People who are able to travel for work taking the opportunity to have affairs or sexual relationships when they travel.

This is just a small list. I am sure you can think of situations which would fit into this category.

Dating Web Sites
Anyone who is in a relationship and participates in a dating web site needs to remember that someone they know may well see that involvement and tell their partner.

Internet
Litigants would do well to remember that a significant aspect of preparation for litigation is gathering information. As a general rule everything posted to the internet is able to be retrieved. Lawyers have been known to engage computer experts to endeavour to retrieve material that may have been deleted from the internet. Some lawyers subpoena material that is posted on the internet as part of their information gathering exercise in preparation for litigation.

Email

• Email, text messages and now social media posts often find their way into evidence in litigation.

Text Messages

• Text messages are easily saved and printed.
• You should expect to see all texts you have sent your spouse in the courtroom, particularly those that do not portray you in a good light.
• Any other relevant text messages are also capable of being part of the litigation.

Smart Telephones

• Smart telephones can be used for text messages, emails, call histories and GPS location information.
• Increasingly evidence from those smart telephones is used in family law litigation.

Land Line Telephone Records

• Your telephone records are retained by your service provider and can be subpoenaed by your spouse.

Mobile Telephone Records
Mobile telephone service providers record information including:

• Every number you called;
• Every number from which you received a call;
• The date of the call;
• The time of the call;
• The length of the call.

Mobile Telephone Geographical Information

Your mobile telephone is able to provide the following geographical information:

• The location from where you spoke.
• The location of the person with whom you are speaking.
• The speed at which you reach the next mobile telephone tower;
• How fast you travelled between any two mobile telephone towers; and
• The direction in which you travelled.
• The mobile telephone towers signal will reveal you are at the same place at the same time as your companion.

Telephone Records

• Expect your former partner to subpoena the records of all known telephone accounts, both land line and mobile.
• Expect your former partner to ask you in the discovery process whether there are any other telephone accounts which you have not previously revealed.

The Electronic Trail
Some other information is available to map your trail:

• Closed Circuit Television Camera Footage
• Financial Account Statements
• Restaurant Bill
• Speed Camera
• Toll Bridge Tag
• Building Security Swipe Card

For an interesting account of how some of this digital footprint material can become part of a criminal law investigation see this article about the electronic trail left by Marcus Einfeld and the part it played in his prosecution.

Subsequently I will deal with social media and the many and varied ways it can become part of family law litigation.

Social Media, Evidence and Family Law Litigation

This post is a follow on from Material One Might Expect In Family Law Litigation.
Storify
With the increasing use of computers and the internet the opportunities to store the information gathered has also increased. As use of social media has increased so have the options that enable creative use of that social media material. One such option is Storify, it enables the user to store tweets from Twitter, posts from Facebook, blog posts and a host of other material from the internet. It also enables the user to write in a manner similar to a blog. I will deal with a specific use of Storify later in this post.

Facebook

• Information can be shared very quickly on Facebook.
• Even if your privacy settings are at the highest another person can post photographs of you and the accompanying circumstances in which the photograph was taken.
• Other people are able to tag or identify you in photographs, even if you do not want to be tagged or identified.
• Reckless, irresponsible and / or injudicious posts to Facebook can become part of litigation that involves you
• It is easy to inconspicuously store such posts in Storify, for example, as part of the information gathering exercise for use later on in the litigation.
• Private messages are able to be sent in Facebook
• A dogmatic lawyer may be inclined to try to subpoena that information as part of the overall case, including any email sent to you as part of that Facebook account.
• Your former partner may ask you in the discovery process to disclose your Facebook account password and sign in / log in information, so they can see what is contained in those emails and the private parts of your Facebook account. 

Twitter

• Similarly reckless, irresponsible and / or injudicious posts to Twitter can become part of litigation that involves you.
• It is easy to inconspicuously store such tweets in Storify, for example, as part of the information gathering exercise for use later on in the litigation.
• Relevantly in relation to Twitter, often account holders are sent an email by Twitter if:
•  •    Someone Follows them; or
  •    Retweets one of their tweets; or
  •    Favourites one of their tweets; or
  •    Mentions them in a tweet.

• In addition that email can often contain a hyperlink which can trace the individual tweet.
• The email is evidence of the tweet, even if the tweet is deleted.
• An email is also sent to the account holder if a Direct Message is sent to them by another account holder.
• Accordingly litigants may find themselves confronted by this evidence if the Twitter account and the accompanying email are subpoenaed.
• Like with Facebook, your former partner may ask you in the discovery process to disclose your Twitter account password and sign in / log in information, so they can see what is contained in those emails and the private parts of your Twitter account.
• It is also possible for other account holders to make very revealing tweets about a litigant.
• Often those tweets can be stored inconspicuously for relevant consideration later.

Blogs

• Blogs posts can be viewed similarly to Faebook posts and tweets on Twitter, reckless, irresponsible and / or injudicious posts to a blog can become part of litigation that involves you.
• It is easy to inconspicuously store such blog posts in Storify, for example, as part of the information gathering exercise for use later on in the litigation.

Insofar as posts to Facebook, Twitter, blogs and the like are concerned, they are usually done so voluntarily by the account holder. A court considering social media posts as part of the evidence may be asked to look at the relevant post or posts as a statement or statements against the interests of the person who made it.

Statement Against Interest
In R v Suteski [2002] NSWCCA 509 (20 December 2002) the court in part looked at statements against interest. Relevantly that case showed:

• A representation is taken to be against the interests of the person who made it if it tends to damage the reputation of the person.
• Any answer which tended to be incriminatory of him was one made against interest.
• Any statement made by the litigant which tended to implicate himself in adverse behaviour would be admissible as a representation against interest.
• A statement against his own interests could be admissible.
• cf A self-serving statement or statement intended to serve his own interests.

It is submitted that litigants should take the view that all their posts to social media will be admissible against them in any litigation involving them and will prima facie be treated as true and accurate in what they say.

The nature of the following also lend themselves to be part of litigation investigation and lawyers may subpoena relevant accounts.

YouTube

• If you are signed in to YouTube, it will usually keep a list of the videos you watch / play
• It will also keep a list of all the videos you Like.

Skype

• Short messaging service enables people to chat with each other in relative privacy

All Instant Messaging Services

• Short messaging services enable people to chat with each other in relative privacy

Similarly to Facebook and Twitter, your former partner may ask you in the discovery process to disclose your account password and sign in / log in information to these accounts, so they can see what is contained in any associated emails and the private parts of your account.

Children Viewing Material

• It is not unusual for children to view the texts, email and / or the photographs on the mobile telephone or computer of a parent.
• Accordingly those children could discover that the parent is engaged in an extra marital relationship.
• Children can also see the social media postings of the parents, which may be embarrassing and / or confronting for the child.
• Their friends may point out the social media postings to them and make the discomfort of the children even greater.

Summary
Summarising to some extent thus far, litigants should expect that their opponents may seek to have evidence from social media, such as Facebook, Twitter, Google+, YouTube, Instagram, Pinterest, Flickr, MySpace, Skype, blogs and forums included as part of their evidence in the litigation. They may even seek to subpoena some of that evidence if necessary.

Storify
As I said earlier, Storify can be used as a tool to collate all this social media material. Compartmentalising the social media material on Storify can enable quite a dossier to be compiled in some circumstances. Here are some examples of the kind of information people share on social media.

• The identity of family, friends, acquaintances and work colleagues;
• Where they go to school;
• Where they work;
• The company they keep;
• What they do for recreation;
• Where they shop;
• What they eat;
• What they do and where and when and with whom they do it;
• When they are away from home;
• Why they are away from home;
• The extent to which they are available to undertake parenting activities;
• What kind of parenting activities they undertake;
• The way a litigant interacts with other tweeters / posters;
• Parts of their personality.

Conclusion
Many separations or divorces are planned in advance, some well in advance. Some involve quite detailed preparation before the other party is informed of the separation. The ready availability of much of this social media material and the digital footprint of litigants and prospective litigants enables that preparation to be all the more detailed and thorough.

Being confronted with a body of voluntarily posted social media material, which has been organised and placed in context with the other material available in the family law litigation may prove rather uncomfortable for some litigants. It may mean that the options available to the litigant are significantly reduced, in terms of what can be achieved at trial and also in terms of negotiating a settlement. That result would be based on actions and activities that the litigant voluntarily undertook.

Actions have consequences. The capacity for consequences to be visited upon earlier actions has increased significantly with the growing use of social media and it can have a profound effect on family law litigation.